In light of a new county policy that will delay the prosecution of marijuana cases for months, defense attorneys representing people charged with possession in Galveston County might start recommending that more people challenge their arrests in court.
The move could force county prosecutors to decide whether to continually ask local judges for delays and extensions in cases that usually don’t take such efforts or to dismiss the case entirely.
“I think we have to do that for our clients,” Jonathan Zendeh Del, a Galveston defense attorney, said of plans to challenge all pending marijuana cases. “We have to utilize the new law and what it allows for.”
Attorneys might advise clients charged with possession of small amounts of marijuana to go to trial rather than plead no contest and pay the fine, for example.
Galveston District Attorney Jack Roady on Monday sent a letter to local police departments and agencies, announcing a policy change in the way his office prosecutes marijuana cases.
Because of a new state law that defines marijuana by the amount of THC it contains, the district attorney’s office can only prosecute marijuana cases after receiving specialized test results.
The new law changes how police and prosecutors must proceed with all marijuana cases, no matter the amount, but most of the changes announced so far deal with misdemeanor infractions over small amounts.
The Texas Department of Public Safety, which would normally conduct the identification tests, is not equipped to test samples of marijuana to the levels defined by state law, officials said. It might be as long as a year until the state has the equipment and procedures necessary to determine whether a sample contains more than the 0.3 percent THC allowed under the new state law.
Until then, Roady could not prosecute people for possession of marijuana, he said.
The Galveston County District Attorney’s Office is not alone in facing the issues caused by the law change. But Galveston County is different from some large counties in the way it plans to handle marijuana cases until testing can resume.
On Wednesday, the district attorneys in Harris, Fort Bend, Bexar and Nueces Counties announced they would not accept misdemeanor marijuana charges without a lab test.
Some counties have also begun dismissing misdemeanor charges currently in the court system.
Roady’s letter took a different tact, urging police departments to continue to collect suspected drug samples and filing reports, and promising to file “all charges” on marijuana cases once testing could be completed.
For people suspected of misdemeanor marijuana possession, the district attorney has up to two years to file charges after a report is made, Zendeh Del said.
The question the local justice system will face is whether to carry cases forward.
“I think the approach he is taking is reasonable,” Zendeh Del said. “It’s not as reasonable as what Harris County is doing.”
Zendeh Del’s firm is representing about 30 people on marijuana cases, he said. Because of the new policy, he planned to take all of the cases to trial, he said.
“We’re going to get them up to trial, and it’s going to be really interesting where the office is going to be able to say ‘this is marijuana and not hemp,’” he said.
He expected that other defense attorneys would make the same calculation.
“I think anybody with a head on their shoulders is going to challenge every case,” he said.